Equality of Arms - paying for advice in divorce cases by Randal Buckley - The Law House Family Law Solicitors, London & Peterborough


Equality of Arms – paying for advice in divorce cases by Randal Buckley

By in All Blogs, Family Law Category on June 12th, 2013

Paying for legal advice can be a tremendous obstacle especially for a low-earning spouse in divorce proceedings. If that spouse cannot afford to pay for advice out of savings or income, is unable to reasonably secure either a commercial bank loan, or an agreement between their solicitors whereby they work for “jam later” by way of a mortgage or similar charge on an asset, then the Court can require their former spouse to pay for some or all of their legal fees. This is known as a Legal Services Order. This may seem “galling” to the other spouse but the Courts have firmly established the obligation for the parties to have “equality of arms” in these matters.

Before making this provision, a Judge is obliged to consider a long list of things including the income, property, and other financial resources of the paying party, the financial needs of both parties, and the conduct of the party making the application. Also, the Judge must ask if, by making the provision, it will cause undue hardship on the paying party or might also prevent the paying party from obtaining his/her own legal advice. Since legal aid is no longer available for the majority of family law cases, this option for funding proceedings may become even more common.

Once the Court has made the provision, if the payer has insufficient liquid cash, then the Court can require the paying party to sell a valued, and valuable, piece of personal property such as a sports car or a wine collection, unless they can prove its absence will cause undue hardship!

The Court recognises that vulnerable people who are unable to pay for their own legal advice are at a fundamental disadvantage. Legal Services Orders are a way for the court to rebalance the situation and provide “equality of arms”.

Applications to the Court which are not made correctly can lead to cost being paid unnecessarily so specialist advice should be sought by anyone contemplating applying for this type of assistance.

If you feel that any of the above might apply to you now or in the future and would like to talk to someone about your divorce and how to manage the costs then please contact Randal Buckley for expert legal advice you can ring Randal on 020 8956 2655 or contact him at sbedford@thelawhouse.com